Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.

Comments are usually moderated. However, I do not accept any legal responsibility for the content of any comment. If any comment seems submitted just to advertise a website it will not be published.

Wednesday, 26 April 2017

A certain D. Trump persuaded me that rather than taking a trip on a Mississippi river boat my holiday spending power would be more welcome at points in an easterly direction. The desert awaits so all being well this page will be updated in a couple of weeks.

Many times here I have castigated the refusal of our overlords to consider compulsory rehab for addicts so that the court system is finally avoided for those 70% who are repeatedly offending in order to finance their habit be it narcotics or alcohol or both.However I doubt we`ll see that initiative for many a long decade. A perfect example was in front of Kirklees Magistrates this week. Whilst he is deserving of pity the public must be protected. I cannot believe that the costs of re hab would exceed the costs of prison including a reduction in future offending and all that that would save. Indeed with new prisons on the horizon existing establishments could be converted to such hostels and these being mainly in cities family ties would have a real possibility of being restored between addict and parents/partners/children.

Tuesday, 25 April 2017

Almost seven years ago after Labour was thrown out of government the decision to impose identity cards for all was rescinded by Mrs T. May the new Home Secretary. Libertarians and perhaps many others
not so single minded about retaining their privacy in an increasingly big
brother state were extremely pleased at that announcement. Identity
Cards for all, a policy so fervently espoused by successive Labour Home
Secretaries, are now history or so we hope but the problem of privacy for the citizen didn`t begin in this century.

In late
December 2008 I was sitting on a case where a driver had refused to give his
details when required by a police officer. For a reason now forgotten during
this hearing we had some "downtime" and were in the retiring room
where on impulse I looked at the bound annual copies of "The Justice of
the Peace" on the bookshelf. I chose to look at the edition of 1908 and
found the page for the same December date of that year. And there it was in black
and white Edwardian prose; the case law where a driver on the request of a
police constable was required to give his name and address. Licenses to drive
were for the future. A gentleman had been motoring through Hyde Park and for
whatever reason refused to give his details to the constable when asked. The
case duly reached a higher level where it was decided that a constable had the
right to demand a driver`s name and address.

In the seven years since Labour`s loss of power our security situation has changed. It would be foolish to think that there will be no repeat of the Westminster terrorist murders in future. In some quarters there are whispers of resurrecting the issue of identity cards for all. Of course we won`t hear anything of this in the next seven weeks but later..........?

Monday, 24 April 2017

There is a shortage of magistrates in Wigan. The local paper has published the following statement from Liz Truss to encourage applicants. I wonder how much is still applicable to today`s situation.

The Lord Chancellor Liz Truss said: “The
involvement of lay people - recruited from a cross-section of our society - is
a central principle in the administration of justice. It helps safeguard our
citizens, with crucial decisions affecting an individual’s liberty being
decided not by officials of the state - but by an independent bench of trained
magistrates drawn from the local community. Our judiciary is amongst the most
respected and independent in the world - part of a justice system that is
widely admired at home and abroad.”

The Lord Chancellor Liz
Truss said: “The involvement of lay people - recruited from a
cross-section of our society - is a central principle in the
administration of justice. It helps safeguard our citizens, with crucial
decisions affecting an individual’s liberty being decided not by
officials of the state - but by an independent bench of trained
magistrates drawn from the local community. Our judiciary is amongst the
most respected and independent in the world - part of a justice system
that is widely admired at home and abroad.”

The Lord Chancellor Liz
Truss said: “The involvement of lay people - recruited from a
cross-section of our society - is a central principle in the
administration of justice. It helps safeguard our citizens, with crucial
decisions affecting an individual’s liberty being decided not by
officials of the state - but by an independent bench of trained
magistrates drawn from the local community. Our judiciary is amongst the
most respected and independent in the world - part of a justice system
that is widely admired at home and abroad.”

Friday, 21 April 2017

Yesterday I posted on the apparent lack of local knowledge shown by the Appeal Court in a case of dangerous driving. Today in the Telegraph the opposite appears to be the case with a crown court judge who has placed a spurious exaggerated defence of a twice convicted drunk driver ahead of the public interest. Such cases happen daily but only a few can be reported to a wider audience. Of course the results of all criminal cases are available in a statistical form. This allows the general nature of our courts system to be commented upon but it bears no reality for those involved either practically or intellectually.

In magistrates` courts arguments, as in today`s case, are often based upon exceptional circumstances in an attempt for totters to retain their driving licenses with 12 penalty points or more having accrued. Generally the arguments are similar to those in this much more serious example. Perhaps there are judges who really are detached from the public perception of their decisions. Perhaps judges should not allow public perceptions to influence their decision making. Somewhere along that slippery gradient and notwithstanding Sentencing Guidelines there is a gap. Perhaps if there were the requisite financing of our courts the CPS could be mandated to challenge any such sentencing decision as a matter of course filtered through specified considerations. All I would say now is that decisions within and surrounding our courts are costing us the justice we deserve, as the magician says, before your very eyes.

Thursday, 20 April 2017

Lesson one for new magistrates:- do not talk to the media. It`s that simple. Of course there are so called rules which define the limits of expressing opinions to same but those who`ve been around for a while understand that unless you were in Kingston or Barry or similar situations and your court was being closed and you vented a portion of your spleen to the local journal the chances were that you would be brought before the headmaster and duly chastised. So often it is the retired J.P. who makes known his/her opinion on a legal topic in the press, TV or social media. Thus it is that the former Chairman of the Bench in Bradford has castigated the Appeal Court for second guessing an original sentence passed by HHJ Roger Thomas QC the Honorary Recorder of Bradford.The offender`s sentence was reduced from 6 months to 4 months custody.Ms Carroll is a wise and experienced individual. There are many more of her ilk active and retired. More of them should speak up when the situation demands. Justices of the Peace are told that they are full members of the judiciary (junior branch). But they are a race apart. They are volunteers with incomes derived outwith the MOJ. They are often experienced professionals or tradespeople in their own right. Yet they are treated as little better than school children by the authorities in their ivory tower in Petty France controlled by an increasingly reactionary Ministry of Justice which appears at times more interested in its press releases than common sense in trying to remember when the British justice system was held in such high regard world wide. Would that were the case now notwithstanding the opportunities afforded by Brexit.

Wednesday, 19 April 2017

One sure result of the election will surely be the appointment of a new Secretary of State for Justice. Perhaps in view of recent controversy a separate position of Lord Chancellor will be re - established.

Tuesday, 18 April 2017

This report of a case at a magistrates` court in 1957 quotes the words of the presiding magistrate or "stipe"...we don`t know which. I wonder whether such comments would pass today without reprimand from those in authority.

Monday, 17 April 2017

For the most part, criminal behaviour orders are just another way of avoiding the reality that some offenders who are not being put away should be put away. When every trick and turn considered to be acceptable to a sceptical public has been exhausted the bright young things at the MOJ offer ever more suggestions on how to run a service to protect that public and simultaneously reduce its reliance on incarceration whilst upping custodial limits in Sentencing Guidelines. Seems to me that having a custodial cake whilst eating it hasn`t succeeded in the past and won`t succeed now. To expand the metaphor this example takes the biscuit.

Friday, 14 April 2017

Prior
to the final decision on which magistrates` courts were to be closed many Bench
chairmen made themselves available to the media to argue their case for their
court to be excused execution. Whether or not their efforts were against the
spirit of the rules on media guidance is not for me to say but lest there be
any doubt, up to date guidance is that magistrates who are
considering writing to a newspaper might "wish to let
a colleague read your draft before submitting for publication”. And then
again you might not………

In general J.P.s are treated by the authorities as a headmaster might treat his pupils. Recently a J.P. was found guilty of serious misconduct owing to a house guest having been arrested on suspicion of harassment and being sent to prison. The J.P. failed to report these circumstances. Around the same time last month after a J.P. entered the magistrates assembly room at Bedlington Magistrates’ Court when he was not sitting as a magistrate he had the judicial rule book thrown at him. What a disreputable way to behave! "The Lord Chancellor and Mrs Justice Cheema-Grubb, on behalf of the Lord Chief Justice, considered that his behaviour fell below the standards expected of a magistrate and have issued him with formal advice.”There does indeed seem one rule for the higher judiciary and another for us:- the unpaid volunteers who deal with 95% of all criminal cases from beginning to end.

Thursday, 13 April 2017

A Scottish case but principle is universal........at least pre Brexit. Would the same logic have been provided if offender were male. And after Brexit and assuming Scotland in U.K. it would be British courts that would have the final jurisdiction; a situation with which I wholeheartedly agree.

Wednesday, 12 April 2017

Another wonderful expression in our modern English language from Police Professional. Note the use of apostrophe. Oh to be so politically correct and literally incorrect simultaneously.
**************************************************

There are times when individuals in authority or institutions behave in such a cack handed manner in an all seeing world of smart phones that one can only marvel at their stupidity. The P.R. debacle at United Airlines is a prime example. But such examples are all around us every day. A housing association has its rules and as such it expects compliance. Whoever contacted the media in this case it seems only the association has a reputation that can be tarnished. The justice system encompassing everything from police, prisons, probation, courts and a whole lot more is perhaps the single area where impressions are as important as the reality; at least as far as the numbers employed in projecting and manipulating those impressions. Those responsible in Scotland for the probation service have only themselves to blame for stories like this. The disaster that was Chris Grayling`s time as Justice Secretary was predicted by those, who unlike him, realised what the reality of his changes would mean. But the weasels in Petty France and their thousands of column inches of utter garbage smothered discontent until a lobby fodder of M.P.s forced changes. The ventriloquist`s dummy at the MOJ had this tweeted reply to a recent parliamentary question on the Criminal Courts Charge imposed by Grayling who of course achieved promotion for his efforts.

When the manipulators are out of their depth and their reliance on so called fake news itself becomes discredited only those actively seeking the truth will be able to discriminate between what "they" tell us and the reality. That will be a sad time for us all.

Tuesday, 11 April 2017

I have to admit that perhaps coming from a loving and extended family and having a normal happy schooling experience the term paedophilia rarely if ever entered my lexicon of language until perhaps I became a father and laterally with the revelations of the Savile case. At my boys only grammar school we all acknowledged the senior maths teacher was effeminate but as far as I know he never at any time allowed any underlying thoughts to interfere with us or his duties. How a situation came about in the 1970s in Rotherham where a teacher could indulge his fantasies in measuring the penises of boys in his charge and that abuse remaining secret for 40+ years is beyond the imagination of this adult. Not surprisingly the perpetrator has been struck off. I wonder just how widespread is the virus of paedophilia?
*********************************************************************************************************Mr Denis Hays:Professional conductpanel outcomePanel decision and reasons on behalf of theSecretary of State for EducationMarch 20172ContentsA. Introduction 3B. Allegations 4C. Preliminary applications 5D. Summary of evidence 9Documents 9Witnesses 10E. Decision and reasons 10Panel’s recommendation to the Secretary of State 21Decision and reasons on behalf of the Secretary of State 243Professional conduct panel decision and recommendations, and decision onbehalf of the Secretary of State

Teacher:

Mr Denis Hays

Teacher ref number:

6311116

Teacher date of birth:

23 February 1945

NCTL case reference:

14641

Date of determination:

21 March 2017

Former employer:

Greasbrough Primary School, Rotherham

A. IntroductionA professional conduct panel (“the panel”) of the National College for Teaching andLeadership (“the National College”) convened on 20 and 21 March 2017 at 53 to 55 ButtsRoad, Earlsdon Park, Coventry CV1 3BH to consider the case of Mr Denis Hays.The panel members were Ms Mary Speakman (teacher panellist – in the chair), ProfessorRoger Woods (lay panellist) and Mr John Matharu (lay panellist).The legal adviser to the panel was Mr Harry Rasmussen of Eversheds Sutherlandsolicitors.The presenting officer for the National College was Sarah Przybylska of 2 Hare Court,instructed by Nabarro LLP solicitors.Mr Denis Hays was not present and was not represented.The hearing took place in public and was recorded.4B. AllegationsThe panel considered the allegations set out in the Notice of Proceedings dated 11October 2016.It was alleged that Mr Denis Hays was guilty of unacceptable professional conduct and/orconduct that may bring the profession into disrepute, in that whilst he was working as ateacher at Greasbrough Primary School ("the School") during the 1970s, he:1. Failed to maintain appropriate professional boundaries in that:a. between approximately 1975 and 1977 he asked pupils to attend at his homefor the purpose of taking part in a “child development study” (“the Study”),namely:i. Pupil A,ii. Pupil B,iii. Pupil C;b. The Study was not linked to any school, agency, or third party;c. In relation to Pupil A, then aged approximately 11 years:i. they attended his home on a monthly basis for approximately two years;ii. no other adult was present during some of these visits;iii. he asked Pupil A to undress;iv. he took measurements of Pupil A whilst he was naked;v. he measured Pupil A’s penis;vi. he held Pupil A’s naked penis whilst measuring it;d. In relation to Pupil B:i. they attended his home on a monthly basis for approximately two years;ii. no other adult was present during some of these visits;iii. he asked Pupil A to undress;iv. he took measurements of Pupil A whilst he was naked;v. he measured Pupil A’s penis;vi. he held Pupil A’s naked penis whilst measuring it;5e. In relation to Pupil C:i. they attended his home on a monthly basis for approximately two years;ii. no other adult was present during some of these visits;iii. he asked Pupil A to undress;iv. he took measurements of Pupil A whilst he was naked;v. he measured Pupil A’s penis;vi. he held Pupil A’s naked penis whilst measuring it;2. His conduct as described at allegation 1 above was sexually motivated.C. Preliminary applicationsProceeding in the absenceThe panel heard an application from the presenting officer that the hearing shouldproceed in Mr Hays’ absence.The panel is satisfied that National College has complied with the service requirements ofparagraph 19.a. to 19.c. of the Teachers’ Disciplinary (England) Regulations 2012, (the“Regulations”).The panel is also satisfied that the Notice of Proceedings complies with paragraphs 4.11.and 4.12. of the Teacher misconduct - Disciplinary procedures for the teachingprofession (the “Procedures”). Additionally, the panel also heard evidence that Mr Hayshas been notified of the change in the constitution of the panel, further to the NationalCollege’s letters to Mr Hays’ representative, dated 3 March 2017 and 7 March 2017. Thepresenting officer stated that in the event that the hearing proceeds in the absence of MrHays, an application will be made to request that such letters are included in the hearingbundle.The panel has determined to exercise its discretion under paragraph 4.29. of theProcedures to proceed with the hearing in the absence of Mr Hays.The panel understands that its discretion to commence a hearing in the absence of theteacher has to be exercised with the utmost care and caution, and that its discretion is aseverely constrained one.In making its decision, the panel has noted that the teacher may waive his right toparticipate in the hearing. The panel has taken account of the various factors drawn to its6attention from the case of R v Jones [2003] 1 AC1. The panel is satisfied that the Noticeof Proceedings was brought to the attention of Mr Hays and that Mr Hays is aware of theproceedings. The panel noted that Mr Hays, via his professional representative, “Voice”,has responded to the Notice of Proceedings on 20 October 2016, to confirm that he willnot be in attendance at the hearing. The panel noted that Mr Hays has provided a letterfrom his GP, dated 11 March 2016, to explain that he feels unable to attend the hearingand that he wishes to be represented. The panel considered a letter from Mr Hays’representative, dated after his GP’s letter, of 22 February 2017, which again notified thatMr Hays would not be in attendance at the hearing but also that he would not berepresented.The panel considers that Mr Hays has consistently expressed the view that he does notwish to attend the hearing. The panel noted from the papers that Mr Hays has the benefitof representation but has expressed the intention not to be represented at the hearing.The panel therefore considers that Mr Hays has waived his right to be present at thehearing in the knowledge of when and where the hearing is taking place. The panel alsonoted that Mr Hays has not requested that the hearing be adjourned.The panel has had regard to the requirement that it is only in rare and exceptionalcircumstances that a decision should be taken in favour of the hearing taking place. Thepanel felt that there is no indication that an adjournment might result in Mr Hays attendingthe hearing at a later date, and noted from Mr Hays’ GP letter which states that “he feelsunable to attend any future hearings including this [hearing]”.The panel has had regard to the extent of the disadvantage to Mr Hays in not being ableto give his account of events at the hearing, having regard to the nature of the evidenceagainst him. The panel notes that it has the benefit of a witness statement from Mr Hays,dated 20 February 2017, and further a letter from Mr Hays’ representative, dated 22January 2016, which provides the position adopted by Mr Hays in response to theallegations against him. The panel notes from Mr Hays’ representative’s letter, dated 22February 2017, that Mr Hays admits allegations 1.a. to 1.e. inclusive, but deniesallegation 2. It is also noted that Mr Hays received the proposed hearing bundle from theNational College and stated that he had no objection to the content of the bundle or hadany additional documents to adduce.In light of the documentation supplied by Mr Hays, the panel is able to ascertain his linesof defence. The panel has his evidence addressing mitigation and would be able to takethis into account at the relevant stage should this become necessary.The panel has noted that Pupil A will be called by the National College to give evidence,and the panel can test that evidence by questioning Pupil A, considering such points asare favourable to the teacher, which are available on the evidence. The panel has not7identified any significant gaps in the documentary evidence provided to it and shouldsuch gaps arise during the course of the hearing, it may take this into consideration indetermining whether the hearing should be adjourned for such documents to becomeavailable and in considering whether the presenting officer has discharged the burden ofproof.The panel is also able to exercise vigilance in making its decision, taking into account thedegree of risk of the panel reaching the wrong decision as a result of not having heardthe teacher’s account.The panel also notes that there is a witness present at the hearing, who is prepared togive evidence, and that it would be inconvenient and potentially distressing for him toreturn again in the case of an adjournment.The panel has had regard to the seriousness of this case, and the potentialconsequences for the teacher and has accepted that fairness to the teacher is of primeimportance. However, it considers that in light of the teacher’s waiver of his right toappear and taking account of the inconvenience an adjournment would cause to thewitness, on balance, the public interest in this hearing proceeding within a reasonabletime is in favour of this hearing continuing today.Amending the allegationsThe panel considered an application from the presenting officer to amend the allegations,to correct what is submitted to be a typographical error in the Notice of Proceedings,dated 11 October 2016.The presenting officer submitted that allegations 1.d.iii. to 1.d.vi. inclusive, and 1.e.iii to1.e.vi. inclusive contain typographical errors, in that they mistakenly refer to “Pupil A”throughout, as opposed to “Pupil B” and “Pupil C” respectively. The presenting officerrequested that the relevant allegations be amended to read as follows:“d. In relation to Pupil B:i. they attended his home on a monthly basis for approximately two years;ii. no other adult was present during some of these visits;iii he asked Pupil B to undress;iv. he took measurements of Pupil B whilst he was naked;v. he measured Pupil B’s penis;vi. he held Pupil B’s naked penis whilst measuring it;8e. In relation to Pupil C:i. they attended his home on a monthly basis for approximately two years;ii. no other adult was present during some of these visits;iii. he asked Pupil C to undress;iv. he took measurements of Pupil C whilst he was naked;v. he measured Pupil C’s penis;vi. he held Pupil C’s naked penis whilst measuring it.”The panel was referred to paragraph 4.56. of the Procedures, which states that the panelhas the power to amend an allegation at any stage before making its decision, where it isin the interests of justice to do so. The panel was advised that in considering the interestsof justice it should be mindful of whether there is a risk that prejudice would be caused tothe teacher if the amendments were allowed. If such a risk exists, the panel mustconsider whether it would be just to allow the application.The panel was referred to Article 6 of the European Convention on Human Rights andthe various relevant factors that it incorporates, such as the right to be informed promptlyand in detail, of the nature and cause of the accusation against the teacher; and the rightto have adequate time and the facilities for the preparation of the teacher’s defence.The panel was advised that, generally, an amendment will cause unfairness or prejudiceto the teacher if it changes the nature of the allegation or makes it more serious thanbefore, or changes the factual basis upon which the allegation is founded. Therefore, thepanel considered whether the teacher’s case would have been presented differently if theamendment had been made at an earlier stage.The panel took the view that the proposed amendments did not change the nature of theallegations such that they would cause unfairness or prejudice to Mr Hays, or that theychanged the factual basis upon which the allegations are founded. The panel noted thatin his witness statement dated 20 February 2017, Mr Hays has responded to theallegations as if the above requested amendment to the allegations had been made. Itappears that Mr Hays had spotted the typographical error contained within the Notice ofProceedings when responding to the allegations, and has responded to what would havebeen the correctly drafted allegations. Notwithstanding Mr Hays’ absence, the panelconsidered that this clearly illustrates that Mr Hays would not be prejudiced by theproposed amendment.The panel therefore determined that the allegations should be amended in the formrequested, as set out above. In reaching this view, the panel was mindful of Mr Hays’absence from the hearing and maintained extra vigilance when reaching its decision.9Admissibility of additional documentsThe panel heard an application from the presenting officer for additional documents to beadmitted to the bundle, these being letters from the National College to the teacher’srepresentative, dated 3 March 2017 and 7 March 2017, both of which notify the teacherof a change in the constitution of the panel before the hearing.The panel considered whether to exercise its discretion under paragraph 4.18. to admitthe aforementioned documents which had not been submitted to the panel and the otherparty to the proceedings at least 4 weeks prior to the hearing. The panel noted that it mayadmit any evidence, where it is fair to do so, which may reasonably be considered to berelevant to the case.The panel decided to admit the documents. The panel noted that the additionaldocuments do not provide additional evidence or allegations against Mr Hays and alsoconsidered that, given the nature of the additional documents, Mr Hays and/or hisrepresentative would already have received the additional documents. Therefore, thepanel felt that it is clear that Mr Hays is not being disadvantaged by the admission of theadditional documents. In reaching this decision, the panel maintained extra vigilance,noting Mr Hays’ absence from the hearing.The panel directed the additional documents be paginated sequentially to allow forinclusion into the hearing bundle, as follows:Letter from the National College to the teacher, dated 3 March 2017 – pages 47 to 48Letter from the National College to the teacher, dated 7 March 2017 – pages 49 to 50D. Summary of evidenceDocumentsIn advance of the hearing, the panel received a bundle of documents which included:Section 1: Chronology and anonymised pupil list – pages 2 to 3Section 2: Notice of Proceedings and response – pages 5 to 11Section 3: NCTL witness statements – pages 13 to 16Section 4: NCTL documents – pages 18 to 31Section 5: Teacher documents – pages 33 to 46In addition, the panel agreed to accept the following:Letter from the National College to the teacher, dated 3 March 2017 – pages 47 to 4810Letter from the National College to the teacher, dated 7 March 2017 – pages 49 to 50The panel members confirmed that they had read all of the documents in advance of thehearing.WitnessesThe panel heard oral evidence from Pupil A, on behalf of the National College.E. Decision and reasonsThe panel announced its decision and reasons as follows:The panel has carefully considered the case before it and has reached a decision.The panel confirms that it has read all the documents provided in the bundle in advanceof the hearing.Mr Denis Hays was employed as a teacher at Greasbrough Primary School (the“School”). During the summer of 1975, he invited two pupils from the School to his homeon the basis that they were to take part in a developmental study on a monthly basis. Afurther pupil also joined in attending Mr Hays’ home for this purpose during the followingyear.On 25 March 2015, the School was contacted by the police following an intelligencereport being submitted by Pupil A, who had attended Mr Hays’ home for the purpose ofthe developmental study. At the point of submitting the intelligence report, Pupil A was apolice officer. Mr Hays was consequently suspended from his position and aninvestigation was commenced. Mr Hays was subsequently interviewed by SouthYorkshire Police on 8 June 2015 and declined to answer police questions in interview. Asafeguarding meeting was held on 22 June 2015, with a further investigative meetingtaking place at the School on 14 July 2015. Mr Hays was subsequently dismissed forgross misconduct, following a disciplinary hearing on 1 October 2015.11Findings of factOur findings of fact are as follows:The panel has found the following particulars of the allegations against you proven, forthese reasons:1. Failed to maintain appropriate professional boundaries in that:a. between approximately 1975 and 1977 you asked pupils to attend at yourhome for the purpose of taking part in a “child development study” (“theStudy”), namely:i. Pupil A,The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.The panel also heard evidence from Pupil A that he and Pupils B and C attended MrHays’ home, for the purpose of assisting Mr Hays conduct a child developmental study.Pupil A stated he and the other boys attended Mr Hays’ home for this purposeapproximately once every month. Pupil A stated that he and Pupil B were asked by MrHays to attend his home on this basis, on their last day of primary school – in the summerof 1975. Pupil A stated that Pupil C, who was an academic-year younger than Pupils Aand B, was asked to attend the Study on his last day of primary school – in the summerof 1976.The panel therefore found this allegation proven.ii. Pupil B,The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.In his live evidence, Pupil A corroborated Mr Hays’ admission of this allegation.The panel therefore found this allegation proven.iii. Pupil C,The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.The panel noted that Pupil A corroborated Mr Hays’ admission of this allegation, in hislive evidence. Pupil A stated that Pupil C commenced attending the Study later than he12and Pupil B, albeit that the three boys stopped attending the Study at the same time(when Pupil A turned 13 or 14).The panel therefore found this allegation proven.In his witness statement, dated 20 February 2017, Mr Hays stated that he met with eachof Pupil A, B and C’s parents to seek their permission for the attendance of their childrenat the Study. In his live evidence, Pupil A commented that since recently speaking withhis father on this subject, whilst it was agreed by Pupil A’s father that Pupil A couldparticipate in the Study, Pupil A’s father was not aware that Pupil A was to be “measured”in the manner alleged, and had he been aware, he would not have authorised his son’sattendance at the Study.The panel therefore finds allegation 1.a. proven.b. The Study was not linked to any school, agency, or third party;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.The panel noted from Mr Hays’ witness statement, dated 20 February 2017, that he didnot notify or seek any guidance from any academic organisation in respect of the Study.Mr Hays states that his behaviour in this regard was naïve.The panel therefore finds this allegation proven.c. In relation to Pupil A, then aged approximately 11 years:i. they attended your home on a monthly basis for approximately twoyears;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.In his live evidence, Pupil A corroborated Mr Hays’ admission of this allegation. Pupil Aconfirmed that he attended Mr Hays’ home in the manner alleged from shortly after heleft primary school, in around the autumn of 1975, until he reached the age of 13 or 14.Pupil A commented that as he entered adolescence he felt increasingly uncomfortable inbeing examined and measured by Mr Hays in the manner alleged during the Study. In hislive evidence, Pupil A commented that he attended Mr Hays’ home on a monthly basis totake part in the Study.The panel therefore finds this allegation to be proven.13ii. no other adult was present during some of these visits;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.In his live evidence, Pupil A corroborated Mr Hays’ admission. He stated that the onlyadult he and Pupils B and C saw during the evenings they attended the Study was MrHays’ wife, who they only ever saw very briefly, when she was either leaving Mr Hays’home as the pupils arrived or when she was arriving back home around the time thepupils were leaving after the Study sessions.The panel therefore finds this allegation proven.iii. you asked Pupil A to undress;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.This was corroborated by Pupil A during his live evidence. Pupil A confirmed during hislive evidence that Mr Hays asked each of the boys to undress to allow them to bemeasured. Pupil A gave a credible account illustrating how all of the boys would benaked in the same room together with Mr Hays. Pupil A stated that Mr Hays wouldconduct his measurements on one of the boys whilst the others undressed, in readinessfor them being measured in turn. The panel noted that Pupil A’s account in this regardpartially conflicted with paragraph 14 of Mr Hays’ witness statement, dated 20 February2017. Notwithstanding this, the panel found Pupil A to be a particularly reliable witness,and therefore accepted his evidence on this allegation.The panel therefore finds this allegation proven.iv. you took measurements of Pupil A whilst he was naked;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.This was corroborated by Pupil A when giving his live evidence. Pupil A described howmeasurements of each of the boy’s various body parts were taken by Mr Hays during theStudy sessions, once every three months. Pupil A gave credible evidence that thisinvolved Mr Hays measuring his, Pupil B’s and Pupil C’s head, arms, legs, neck, chestand penis, whilst the boys were naked. Mr Hays also examined the boys’ testicles.Pupil A stated that these measurements were taken relatively quickly, with all of the boys’measurements being completed in around 15 to 20 minutes. Pupil A stated that once the14measuring had been completed, he and Pupils B and C would stay at Mr Hays’ houseand socialise for around 90 minutes. Pupil A recalled on occasion watching televisionwith the boys and Mr Hays, after the measurements had been taken.The panel therefore found this allegation proven.v. you measured Pupil A’s penis;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.Pupil A corroborated Mr Hays’ admission in relation to this allegation. Pupil A gavecredible evidence that during the evenings on which the boys were measured, Mr Haysmeasured each boy’s penis, in a non-erect state.Pupil A commented that as part of the Study, Mr Hays wished to take measurements ofthe boys’ erect penises. He stated that whilst Mr Hays placed no pressure on him toproduce an erection, on one occasion Mr Hays measured Pupil A’s erect penis.The panel therefore finds this allegation proven.vi. you held Pupil A’s naked penis whilst measuring it,The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.Mr Hays’ admission was corroborated by Pupil A during his live evidence.The panel therefore finds this allegation proven.d. In relation to Pupil B:i. they attended your home on a monthly basis for approximately twoyears;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.Additionally, the panel noted that this allegation was corroborated by Pupil A during hislive evidence. Pupil A stated that he and Pupil B commenced attending the Studytogether in around the autumn of 1975. They both attended Mr Hays’ home on a monthlybasis up until Pupil A turned 13 or 14, when their attendance (as well as Pupil C’sattendance) at the Study sessions ceased.The panel therefore finds this allegation proven.15ii. no other adult was present during some of these visits;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.Additionally, this allegation was corroborated by Pupil A, during his live evidence, as setout in respect of allegation 1.c.ii. above.Accordingly, the panel therefore finds this allegation proven.iii. you asked Pupil B to undress;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.In his live evidence before the panel, Pupil A stated that he had been in the same roomas Pupil B when Pupil B undressed on the instruction of Mr Hays. Pupil A gave a credibleaccount of how each of the pupils would undress in the same room as each other, in thepresence of Mr Hays. Pupil A stated that Mr Hays would conduct his measurements onone of the boys whilst the others undressed, in readiness for them being measured inturn. The panel noted that Pupil A’s account in this regard partially conflicted withparagraph 14 of Mr Hays’ witness statement, dated 20 February 2017. Notwithstandingthis, the panel found Pupil A to be a particularly reliable witness, and therefore acceptedhis evidence on this allegation.The panel therefore finds this allegation proven.iv. you took measurements of Pupil B whilst he was naked;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.This was corroborated by Pupil A when giving his live evidence. Pupil A described howmeasurements of each of the boy’s various body parts were taken by Mr Hays during theStudy sessions, once every three months. Pupil A gave credible evidence that thisincluded measuring his, Pupil B’s and Pupil C’s head, arms, legs, neck, chest and penis,whilst the boys were naked. Mr Hays also examined the boys’ testicles.Pupil A stated that these measurements were taken relatively quickly, with all of the boys’measurements being completed in around 15 to 20 minutes. Pupil A stated that once themeasuring had been completed, he and Pupils B and C would stay at Mr Hays’ houseand socialise for around 90 minutes. Pupil A recalled on occasion watching televisionwith the boys and Mr Hays, after the measurements had been taken.16The panel therefore finds this allegation proven.v. you measured Pupil B’s penis;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.In his live evidence before the panel, Pupil A stated that he had been in the same roomas Pupil B and C when Pupil B’s penis was measured by Mr Hays. Pupil A gave acredible account of how he, Pupil B and Pupil C would joke with each other in relation tothe measurements taken by Mr Hays.The panel therefore finds this allegation proven.vi. you held Pupil B’s naked penis whilst measuring it;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.In his live evidence before the panel, Pupil A corroborated Mr Hays’ admission.The panel therefore finds this allegation proven.e. In relation to Pupil C:i. they attended your home on a monthly basis for approximately twoyears;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.On the evidence provided by Pupil A during the hearing, the panel considered that PupilC attended Mr Hays’ home for the purpose of the Study approximately once per month,along with Pupils A and B. Pupil A stated, however, that Pupil C started attending MrHays’ home for this reason after Pupils A and B, and that Pupil C began attending MrHays’ home approximately one year after Pupils A and B. Pupil A confirmed during hislive evidence that he, Pupil B and Pupil C all stopped attending Mr Hays’ home at thesame time, when Pupil A reached the age of 13 or 14.Notwithstanding that the panel noted that Pupil C may have attended Mr Hays’ home fora total period of less than two years, it found this allegation proven. The panel found thatPupil C did attend Mr Hays’ home on a monthly basis for an extended period of time, andthat the wording of the allegation states “approximately” two years. Furthermore, inreaching its decision, the panel had in mind Mr Hays’ admission of this allegation.17ii. no other adult was present during some of these visits;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.Additionally, this allegation was corroborated by Pupil A, during his live evidence, as setout in respect of allegation 1.c.ii. above.Accordingly, the panel therefore finds this allegation proven.iii. you asked Pupil C to undress;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.In his live evidence before the panel, Pupil A stated that he had been in the same roomas Pupil C when Pupil C undressed on the instruction of Mr Hays. Pupil A gave a credibleaccount of how each of the pupils would undress in the same room as each other, in thepresence of Mr Hays. Pupil A stated that Mr Hays would conduct his measurements onone of the boys whilst the others undressed, in readiness for them being measured inturn. The panel noted that Pupil A’s account in this regard partially conflicted withparagraph 14 of Mr Hays’ witness statement, dated 20 February 2017. Notwithstandingthis, the panel found Pupil A to be a particularly reliable witness, and therefore acceptedhis evidence on this allegation.The panel therefore finds this allegation proven.iv. you took measurements of Pupil C whilst he was naked;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.This was corroborated by Pupil A when giving his live evidence. Pupil A described howmeasurements of each of the boy’s various body parts were taken by Mr Hays at theStudy, once every three months. Pupil A gave credible evidence that this involved MrHays measuring his, Pupil B’s and Pupil C’s head, arms, legs, neck, chest and penis,whilst the boys were naked. Mr Hays also examined the boys’ testicles.Pupil A stated that these measurements were taken relatively quickly, with all of the boys’measurements being completed in around 15 to 20 minutes. Pupil A stated that once themeasuring had been completed, he and Pupils B and C would stay at Mr Hays’ houseand socialise for around 90 minutes. Pupil A recalled on occasion watching televisionwith the boys and Mr Hays, after the measurements had been taken.18The panel therefore finds this allegation proven.v. you measured Pupil C’s penis;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.In his live evidence before the panel, Pupil A stated that he had been in the same roomas Pupil B and C when Pupil C’s penis was measured by Mr Hays. Pupil A gave acredible account of how he, Pupil B and Pupil C would joke with each other in relation tothe measurements taken by Mr Hays.The panel therefore finds this allegation proven.vi. you held Pupil C’s naked penis whilst measuring it;The panel noted that Mr Hays has admitted this allegation in the response to the Noticeof Proceedings, dated 20 October 2016. Furthermore, the panel found that Mr Hays hadalso admitted this allegation in his witness statement, dated 20 February 2017.The panel therefore finds this allegation proven.In light of the above, the panel also finds that Mr Hays failed to maintain appropriateprofessional boundaries. The panel noted from his witness statement dated 20 February2017, that Mr Hays admits that his behaviour as set out above, and as admitted, wentbeyond acceptable professional boundaries.2. Your conduct as described at allegation 1 above was sexually motivated.The panel noted that Mr Hays has denied this allegation in his response to the Notice ofProceedings, dated 20 October 2016 and in his witness statement, dated 20 February2017.Mr Hays states that in conducting the Study in the manner set out above (and asadmitted) he was motivated by nothing more than a naïve wish to obtain furtherqualifications so that he could progress up the teaching pay scales and provide for hisfamily. Mr Hays, in his witness statement, describes how his then headteacher suggestedthat he obtain a degree to increase his chances of promotion, and with this in mind, MrHays decided to undertake a private study into child development, the detail of which MrHays could use for any subsequent course he enrolled upon.In his witness statement, Mr Hays describes how he did not discuss his private study withanyone that he worked with, or anyone from any academic institute. Mr Hays describeshow he did not tell the School or the secondary school at which each of the pupils wereattending, that the Study was being undertaken. Mr Hays states that this was not done tobe secretive, but rather the thought to provide such notification never occurred to him.19The panel notes that from the documentation submitted on Mr Hays’ behalf that he didnot go on to undertake a further degree course, due to a change in his personalcircumstances alleviating the need for an increased income.Notwithstanding the absence of Mr Hays at the hearing and the extra vigilancemaintained by the panel in light of this, the panel did not accept Mr Hays’ account that hisactions were not sexually motivated, and were simply naïve.In reaching its conclusion, the panel was advised to consider whether reasonablepersons would think the actions found proven against Mr Hays could be sexual, thisbeing the objective test. Notwithstanding that the conduct found against Mr Hays tookplace in the 1970s, the panel felt that reasonable persons would consider that Mr Hays’actions could be sexual. The panel felt that Mr Hays’ repeated measuring andmanipulation of Pupils A, B and C’s genitals had no basis or foundation in academicstudy – reflected by the fact that no academic institute was aware of or involved in theStudy. There was no need for the boys to be naked whilst their other body parts weremeasured and the panel felt that the reasonable person could only conclude that MrHays’ measuring of a pupil’s erect penis was sexually motivated. The panel acceptedsubmissions from the presenting officer that Mr Hays only appeared to select young boysto undertake the Study, and noted that no girls were invited to participate in what wasreportedly a child developmental study.The panel then considered whether, in all the circumstances of the conduct in the case,Mr Hays’ purpose behind such actions was sexual, this being the subjective test. On thebalance of probabilities, the panel found that this subjective test was satisfied.The panel noted that Mr Hays had waited until each of the pupils participating in theStudy had left the school at which he taught, and that Mr Hays did not request that theStudy be supervised by other adults. Mr Hays did not seek to cross-reference the workundertaken during the Study with other professionals, and nor did Mr Hays ultimately goon to use the information gained during the Study for any means to progress his career.Pupil A gave evidence indicating that his father was not given a full account of the Study,and he confirmed that his father would not have allowed Pupil A to attend the Study hadhe known of the measurements being taken.The panel considers that, on balance, Mr Hays was intentionally trying to keep a trueaccount of the Study from others in the knowledge that the Study was inappropriate. Thepanel is satisfied that Mr Hays’ motivation for initiating and undertaking the Study was, atleast in part, sexual.The panel therefore finds this allegation proven.Findings as to unacceptable professional conduct and/or conduct thatmay bring the profession into disreputeHaving found each of the allegations to have been proven, the panel has gone on toconsider whether the facts of those proven allegations amount to unacceptableprofessional conduct and/or conduct that may bring the profession into disrepute.20In doing so, the panel has had regard to the document Teacher misconduct: Theprohibition of teachers, which the panel refers to as “the Advice”.The panel is satisfied that the conduct of Mr Hays in relation to the facts found proven,involved breaches of the Teachers’ Standards. The panel considers that by reference toPart Two, Mr Hays is in breach of the following standards: Teachers uphold public trust in the profession and maintain high standards ofethics and behaviour, within and outside school, by:o treating pupils with dignity, building relationships rooted in mutual respect, andat all times observing proper boundaries appropriate to a teacher’sprofessional position;o having regard for the need to safeguard pupils’ well-being, in accordance withstatutory provisions; ando showing respect for the rights of others.With regard to showing respect for the rights of others, the panel considered that MrHays’ conduct in measuring and holding each boy’s genitals represented a failure toappreciate their rights as individuals to be free from such molestation.The panel is satisfied that the conduct of Mr Hays fell significantly short of the standardsexpected of the profession.The panel has also considered whether Mr Hays’ conduct displayed behavioursassociated with any of the offences listed on pages 8 and 9 of the Advice. The panel hasfound that the offence of sexual activity is relevant. The panel found that Mr Hays’behaviour in measuring and holding the boys’ genitals without convincing evidence to thecontrary, could clearly be associated with an offence of sexual activity. The Adviceindicates that where behaviours associated with an offence of sexual activity exist, apanel is likely to conclude that an individual’s conduct would amount to unacceptableprofessional conduct.The panel notes that the allegations took place outside of the education setting. Thepanel did not find, on the evidence, that the allegations found proven affected the mannerin which Mr Hays fulfils his teaching role. In this regard, it was noted that Pupil A, duringhis live evidence, found Mr Hays to be a good teacher whom he respected. However,the panel determined that the behaviour found proven against Mr Hays clearly may leadto pupils being exposed to or influenced by such behaviour in a harmful way. The panelaccepted submissions from the presenting officer that Mr Hays targeted boys who hadjust left the primary school at which he taught. Pupils A, B and C were each asked by MrHays to attend the Study on their final day of primary school. In light of this, the panelconsidered that there was clear potential for Mr Hays to target boys whom he taught atthe School.21Accordingly, the panel is satisfied that Mr Hays is guilty of unacceptable professionalconduct.The panel has taken into account how the teaching profession is viewed by others andconsidered the influence that teachers may have on pupils, parents and others in thecommunity. The panel has taken account of the uniquely influential role that teachers canhold in pupils’ lives and that pupils must be able to view teachers as role models in theway they behave. The panel considered that the misconduct found against Mr Hays isserious, and that the conduct displayed would have a negative impact on Mr Hays’ statusas a teacher, and would damage the public perception of the profession.The panel therefore finds that Mr Hays’ actions constitute conduct that may bring theprofession into disrepute.Having found the facts of the allegations against Mr Hays proven, the panel further findsthat Mr Hays’ conduct amounts to both unacceptable professional conduct and conductthat may bring the profession into disrepute.Panel’s recommendation to the Secretary of StateGiven the panel’s findings in respect of unacceptable professional conduct and conductthat may bring the profession into disrepute, it is necessary for the panel to go on toconsider whether it would be appropriate to recommend the imposition of a prohibitionorder by the Secretary of State.In considering whether to recommend to the Secretary of State that a prohibition ordershould be made, the panel has considered whether it is an appropriate and proportionatemeasure, and whether it is in the public interest to do so. The panel understands thatprohibition orders should not be given in order to be punitive, or to show that blame hasbeen apportioned, although they are likely to have punitive effect.The panel has considered the particular public interest considerations set out in theAdvice and having done so has found a number of them to be relevant in this case,namely: the protection of pupils and the protection of other members of the public; themaintenance of public confidence in the profession; declaring and upholding properstandards of conduct; and the interest of retaining the teacher in the profession.In light of the panel’s findings against Mr Hays, which involved the systematic andrepeated measurement and handling of Pupils A, B and C’s genitals, there is a strongpublic interest consideration in respect of the protection of pupils and other members ofthe public. The findings against Mr Hays are serious, and indicate that Mr Hays’ sexuallymotivated behaviour was targeted at young boys who he had, up until very shortly beforetheir involvement in the Study, previously taught. The panel acknowledged that, due tohis age and the unlikelihood of Mr Hays returning to teaching, there is a reduced risk ofharm to pupils and protection of the public. Nevertheless, the panel felt that in the event22that Mr Hays had the opportunity to teach again he could pose a risk to pupils of his andother schools.The panel considers that public confidence in the profession could be seriouslyweakened if conduct such as that found against Mr Hays were not treated with theutmost seriousness when regulating the conduct of the profession. The panel felt that thepublic should, quite rightly, expect that teachers could not permissibly demonstrate thetype of conduct found proven against Mr Hays, and that the regulator should be seen tobe treating such conduct with the utmost seriousness.Additionally, the panel considered that a strong public interest consideration in declaringproper standards of conduct in the profession was also present, as the conduct foundagainst Mr Hays was clearly outside that which could reasonably be tolerated by theprofession.The panel considered the public interest consideration in retaining Mr Hays in theprofession, since, as per the letter from Mr Hays’ representative, dated 22 January 2016,Mr Hays has reportedly taught at the School for 46 years without any other complaint.The panel accepted this and felt that Mr Hays is clearly an experienced educator. Thepanel also felt, however, that Mr Hays has shown a limited understanding of theimplications of his behaviour – merely describing his admitted conduct as naïve andregrettable. Additionally, the panel has seen no references or statements from thirdparties attesting to the abilities of Mr Hays as a teacher.In view of the clear public interest considerations that were present, the panel consideredcarefully whether or not it would be proportionate to impose a prohibition order taking intoaccount the effect that this would have on Mr Hays.In carrying out the balancing exercise the panel has considered the public interestconsiderations both in favour of and against prohibition as well as the interests of MrHays. The panel took further account of the Advice, which suggests that a prohibitionorder may be appropriate if certain behaviours of a teacher have been proven. In the listof such behaviours, the panel considered the following to be relevant in this case: serious departure from the personal and professional conduct elements of theTeachers’ Standards; misconduct seriously affecting the education and/or well-being of pupils, andparticularly where there is a continuing risk; abuse of position or trust (particularly involving vulnerable pupils) or violation of therights of pupils; sexual misconduct, e.g. involving actions that were sexually motivated or of asexual nature and/or that use or exploit the trust, knowledge or influence derivedfrom the individual’s professional position;23Notwithstanding that there were behaviours that would point to a prohibition order beingappropriate, the panel went on to consider whether or not there were sufficient mitigatingfactors to militate against a prohibition order being an appropriate and proportionatemeasure to impose, particularly taking into account the nature and severity of thebehaviour in this case.The panel considers that Mr Hays’ actions were deliberate and that Mr Hays was notacting under duress. The panel gave consideration to Mr Hays’ submissions that, savefor this matter, he had undertaken a long career at the School – which exceeded 46years, and has received no other complaints. Notwithstanding this, the panel found itnoteworthy that despite Mr Hays’ long-standing period of working at the School withoutcomplaint, he has presented no character references from colleagues or third parties,supporting his ability as a teacher or his good character.The panel first considered whether it would be proportionate to conclude this case withno recommendation of prohibition, considering whether the publication of the findingsmade by the panel is sufficient.The panel is of the view that in applying the standard of the ordinary intelligent citizen, itwould be inappropriate to recommend that no prohibition order be imposed. The panelconsidered that merely recommending the publication of adverse findings against MrHays would unacceptably compromise the public interest considerations present in thiscase. This is notwithstanding the severity of the consequences for Mr Hays when facedwith prohibition. The panel felt that in meeting the public interest considerations relevantto this matter, it was necessary, proportionate and appropriate to recommend that aprohibition order be made against Mr Hays.The panel has decided that the public interest considerations outweigh the interests of MrHays in this case. The panel felt that the seriousness of the conduct found against MrHays along with the limited mitigation offered in his support, was a significant factor informing that opinion. Accordingly, the panel makes a recommendation to the Secretary ofState that a prohibition order should be imposed with immediate effect.The panel went on to consider whether or not it would be appropriate to decide torecommend that a review period of the order should be considered. The panel wasmindful that the Advice states that a prohibition order applies for life, but there may becircumstances in any given case that may make it appropriate to allow a teacher to applyto have the prohibition order reviewed after a specified period of time that may not beless than 2 years.The Advice indicates that there are behaviours that, if proven, would militate against areview period being recommended. One such behaviour is serious sexual misconduct,for example, where the act was sexually motivated and resulted in or had the potential toresult in, harm to a person or persons, particularly where the individual has used theirprofessional position to influence or exploit a person or persons.24The panel considers that Mr Hays’ proven conduct was sexually motivated, for thereasons set out above. It considers that his actions had the potential to harm the pupilsinvolved in the Study. The panel also felt from Pupil A’s live evidence, that Mr Hays reliedupon his status as a respected and trusted teacher in order to have the boys participatein the study; it was noted that Pupil A had felt keen to please Mr Hays. The paneltherefore felt that Mr Hays had exploited his position in conducting his sexually motivatedbehaviour.The panel does not consider that Mr Hays has shown any real insight into his behaviour.He does not appear to have acknowledged the potential impact that his behaviour couldhave had on the pupils involved in the Study, but rather simply describes his conduct asnaïve. In a letter from Mr Hays’ representative to the National College, dated 22 January2016, it is said that Mr Hays had reflected on his experience and learned where he wentwrong. The letter goes on to state that Mr Hays should have protected himself and thepupils by having another adult present. The panel considers that Mr Hays does not graspthe seriousness of his conduct, its potential impact on the pupils involved, or its negativeimpact upon the reputation of the profession, which, in any event would not beameliorated merely by the presence of another adult.The panel felt the findings indicated a situation in which a review period would not beappropriate and as such decided that it would be proportionate in all the circumstancesfor the prohibition order to be recommended without provisions for a review period.Decision and reasons on behalf of the Secretary of StateI have given very careful consideration to this case and to the recommendation made bythe panel in respect of both sanction and review.In considering the case I have also taken into consideration the advice that is publishedby the Secretary of State concerning the prohibition of teachers.I have also had due regard to the fact that in this case the teacher has admitted theallegations. I have also balanced the historic nature of these allegations with theseriousness of the behaviours.In this case the panel has found that Mr Hays is in breach of the following standards: Teachers uphold public trust in the profession and maintain high standards ofethics and behaviour, within and outside school, by:o treating pupils with dignity, building relationships rooted in mutual respect, andat all times observing proper boundaries appropriate to a teacher’sprofessional position;o having regard for the need to safeguard pupils’ well-being, in accordance withstatutory provisions; and25o showing respect for the rights of others.With regard to showing respect for the rights of others, the panel considered that MrHays’ conduct in measuring and holding each boy’s genitals represented a failure toappreciate their rights as individuals to be free from such molestation.The panel is satisfied that the conduct of Mr Hays fell significantly short of the standardsexpected of the profession.The panel has also considered whether Mr Hays’ conduct displayed behavioursassociated with any of the offences listed on pages 8 and 9 of the Advice. The panel hasfound that the offence of sexual activity is relevant. The panel found that Mr Hays’behaviour in measuring and holding the boys’ genitals without convincing evidence to thecontrary, could clearly be associated with an offence of sexual activity. The Adviceindicates that where behaviours associated with an offence of sexual activity exist, apanel is likely to conclude that an individual’s conduct would amount to unacceptableprofessional conduct.The panel in this case has found both unacceptable professional conduct and conductthat may bring the profession into disrepute. Having found that the panel hasrecommended to me that Mr Hays should be prohibited from teaching. The panelconsidered the following to be relevant in this case: serious departure from the personal and professional conduct elements of theTeachers’ Standards; misconduct seriously affecting the education and/or well-being of pupils, andparticularly where there is a continuing risk; abuse of position or trust (particularly involving vulnerable pupils) or violation of therights of pupils; sexual misconduct, e.g. involving actions that were sexually motivated or of asexual nature and/or that use or exploit the trust, knowledge or influence derivedfrom the individual’s professional position.In considering whether or not to impose a prohibition order on Mr Hays I have weighedthe various elements of the public interest alongside the interests of the teacher. I havealso recognised that a prohibition order should not be imposed as a punitive measureeven though it may have a punitive effect.In considering whether to impose a prohibition order I have considered the option that apublicly declared finding of unacceptable professional conduct or conduct that may bringthe profession into disrepute may, in some cases, be a proportionate outcome to a case.In this case I have also had to consider the fact that these allegations relate tobehaviours that are historic. Nonetheless I have had to also take into account the very26serious nature of the behaviours. The panel state that “Mr Hays had exploited his positionin conducting his sexually motivated behaviour.”For these reasons I am accepting the recommendation of the panel and am imposing aprohibition order on Mr Hays. In my judgement and having weighed all the issues andconsidered the published advice I consider that to be proportionate and in the publicinterest.I have gone on to consider the matter of a review period. In considering this I have notedthe panel’s comments on the degree of insight and remorse shown by Mr Hays. Thepanel are clear that Mr Hays has shown only limited insight.I have taken particular account of the panel’s comment that “Mr Hays does not grasp theseriousness of his conduct, its potential impact on the pupils involved, or its negativeimpact upon the reputation of the profession, which, in any event would not beameliorated merely by the presence of another adult.”In my view it is therefore proportionate and in the public interest that the prohibition ordershould be imposed with no opportunity for review.This means that Mr Denis Hays is prohibited from teaching indefinitely and cannotteach in any school, sixth form college, relevant youth accommodation orchildren’s home in England. Furthermore, in view of the seriousness of the allegationsfound proved against him, I have decided that Mr Denis Hays shall not be entitled toapply for restoration of his eligibility to teach.This order takes effect from the date on which it is served on the teacher.Mr Denis Hays has a right of appeal to the Queen’s Bench Division of the High Courtwithin 28 days from the date he is given notice of this order.Decision maker: Alan MeyrickDate: 23 March 2017This decision is taken by the decision maker named above on behalf of the Secretary ofState.